Introduction: Reconcilable Differences: A Consumer's Guide to Divorce Mediation

by William H. Donahue, Jr., Esq., APM

Paula Abbot had been married for 15 years when she first came into my law office almost eight years ago. She and her husband, Stan, had two children. Stan, Jr. was thirteen. Jenna was ten. Paula and Stan both had good jobs and a wonderful life. She loved her house and her neighborhood and her children's school. She loved the fact that the children could both walk to school and to their friends' houses after school. Their lives were very set and comfortable. She couldn't imagine moving them.

She was strangely calm as she explained what had happened. "Stan came home from work two nights ago. He was tired and irritable, but that's nothing new." She paused, remembering the details of the exchange. "He sat down at the dining room table. The kids and I had eaten hours earlier. He just looked at me for a long time. I thought he had been fired or something. I asked him what was wrong. He said he wanted a divorce. Just like that. No lead in, nothing. He just wanted out."

Paula said her first reaction was numbness and disbelief. She didn't even cry. She couldn't imagine that he was serious. But by the time she came to my office, the numbness had turned to panic and rage. He had betrayed her, betrayed their children, their lives. Over the next few months I would come to learn that she didn't want what was fair or just. She wanted revenge. She wanted to make him pay for what he had done to her.

While I was meeting and getting to know Paula, Stan was across town in the office of attorney I knew and respected. He was telling his attorney a very different story. Stan saw Paula as controlling and hypercritical. She doted on the children, but had no time for him except to complain about what he hadn't done. He was thirty-nine years and would rather be dead than spend the rest of his life with Paula. He not only didn't love her, he hated her for the way she made him feel about himself. He had tried for years to tell her how miserable he was, but it was like talking to a stone.

Three years and $75,000 later, Paula and Stan got their divorce. They settled their case on the morning we were scheduled to start trial. By that time, we had been to court more times than I can remember. They fought over everything. When the case was finally over, Paula and Stan couldn't even talk to each other, and Stan, Jr., who was sixteen by that time, was no longer talking to his father. Jenna was in therapy and almost two full grade levels behind in reading and arithmetic. I have represented Paula several times since the divorce to collect unpaid child support.

The incredible thing was that Paula felt she had won. She got to keep the house and she had custody of the children. She got the child support she was entitled to and roughly half of the marital assets including Stan's pension. She didn't get alimony, but she never expected to. She had limited Stan's contact with Jenna to a few hours a week and given Stan, Jr.'s age it was agreed that he could visit with his father when he wanted to. That turned out to be never.

When Paula came into my office that day, I was determined to vindicate her rights, to get her everything the law would possibly allow her, and I did just that. And yet, when the case was over, I felt I had failed her and her family. I didn't know how unnecessary the battle we waged was. I didn't know there was a better way to get divorced. I do now. It's called mediation.

Mediation is a method of conflict resolution that relies on several basic principles. The first is that people have the ability and the right to resolve their own disputes, including divorce. The second principle is that most people can better solve their own disputes with the help of a mediator, a highly trained and experienced, neutral third person who can structure and guide them through the negotiation process, and who can help them change the way they think about their divorce, each other, and themselves.

The third principle on which mediation relies is that mediation is non-adversarial. What makes it non-adversarial is that the parties to the dispute learn to define common interests and find solutions that satisfy those interests. You will see throughout "Reconcilable Differences" how this actually works. Non-adversarial doesn't mean the people involved like each other, get along with each other or agree with each other. Enemies on the verge of and war can, and have, used mediation to successfully resolve their differences. In my practice, couples who are consumed with anger and driven by revenge have learned to be non-adversarial, and to negotiate fair divorce settlements using mediation principles. And, unlike Paula and Stan, those couples are able to use the techniques they learn in mediation every time a problem comes up in the years after their divorce.

A non-adversarial approach is as different from an adversarial approach as peace is from war. In mediation, the parties stop seeing each other as adversaries and start seeing each other as two people trying to resolve a common problem. They come to see that they share a common goal: finding a settlement of their divorce that helps them both achieve their individual interests and long-term goals. They can still be angry. They can still hate each other. But for purposes of the mediation, they put those emotions aside and work together to get the kind of divorce settlement they both need and want. This is a profound shift that sets the stage for everything that follows. Viewing the divorce itself as a common problem to be resolved in everyone's best interest give the parties to a dispute a new framework, a standard against which to judge everything they do and say throughout the process.

Helping clients discover their deeper needs and interests isn't always easy. But it's one of the most important things a mediator does. Here's an example of immediate vs. deeper, long-term goals. Suppose both parties to a divorce want to keep and live in the marital home. Their immediate desires would appear to be irreconcilable. After a divorce, they cannot both live in the same house. Three solutions come to mind: Husband lives in the house and wife moves out. Wife lives in the house and husband moves out. They sell the house and both move out. The first two solutions will make one spouse happy and one spouse unhappy. The third will make both of them unhappy. Only by defining interests and needs that are more important to them than keeping a particular house will they be able to find a solution that makes them both happy. If the only need, the only goal is to keep the house, there is no solution that will satisfy both of them. If deeper needs like financial security, self-respect, preservation of relationships, contact with the past or with important memories, freedom from fear and loneliness, a fresh start, or well-being of children can be articulated, a whole new world of possible solutions opens up. The couple I worked with who had to deal with this issue resolved it by agreeing that the house would be sold. What they both really wanted was a sense of security. For either of them to hold onto a house that was too big and too expensive would deprive both of them of the security they needed.

As a mediator, I don't tell my clients what their needs, goals or interests are or should be. I lay out the framework and then use a great many questions to help them define their own needs, goals and interests. They then formulate their own solutions.

Adversarial approaches to conflict rarely provide a lasting solution that benefits both parties because there tends to be a winner and loser. Adversarial dispute resolution undermines or destroys relationships, diminishes self-respect and productivity and often leads to future conflict. I knew the morning I settled Paula's divorce that we would be back in court within six months. And we were. Even for the winner, adversarial dispute resolution can lead to the proverbial Pyrrhic victory. Winning custody of a child, but losing the respect of the child, destroying the child's relationship with his or her other parent in the process or gaining the undying hatred of your ex-spouse is a victory that may not be worth winning.

Reconcilable Differences is about more than divorce. It's about mediation and how some of the people with whom I have worked over the years have used mediation to get divorced. Throughout the book, you'll meet people who faced the same kinds of issues and felt many of the same emotions Stan and Paula faced and felt. But these people dealt with them very differently. They dealt with them differently because they came to me not to represent them as their lawyer, but to work with them as a mediator. For them, it made all the difference in the world.

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